Citation Nr: 1000596
Decision Date: 01/05/10 Archive Date: 01/15/10
DOCKET NO. 04-33 552 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Sioux
Falls, South Dakota
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disorder.
2. Entitlement to service connection for small vessel
ischemic disease.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Bernard T. DoMinh, Counsel
INTRODUCTION
The Veteran served on active duty in the United States Air
Force from August 1971 to August 1975.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a May 2003 rating decision by the Sioux Falls,
South Dakota, Regional Office (RO) of the Department of
Veterans Affairs (VA) which, inter alia, denied the Veteran's
claim of entitlement to service connection for an acquired
psychiatric disorder and small vessel ischemic disease.
During the course of the appeal, the Board remanded the case
in May 2007 for additional evidentiary development, including
scheduling the Veteran for VA medical examinations to obtain
nexus opinions addressing the disabilities at issue.
However, the Veteran failed to appear for the scheduled
examinations and the RO adjudicated the claim based on the
record and denied the claim. The case was returned to the
Board in July 2009 and the Veteran now continues his appeal.
For the reasons that will be further discussed below, the
issue of entitlement to service connection for small vessel
ischemic disease is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, D.C. VA will notify
the appellant and his representative if any further action is
required on their part.
FINDING OF FACT
Resolving doubt in his favor, the Veteran's generalized
anxiety disorder and depression (not otherwise specified) had
its onset during active duty.
CONCLUSION OF LAW
Generalized anxiety disorder and depression (not otherwise
specified) were incurred in active military service.
38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R.
§§ 3.102, 3.303 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
With respect to the Veteran's claim of entitlement to service
connection for an acquired psychiatric disorder, as the
benefit sought on appeal is being granted in full, as
discussed below, the Board finds that any error related to
the VCAA (Pub. L. No. 106-475, 114 Stat. 2096 (2000)
(codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107,
5126 (West 2002 & Supp. 2009)) on this claim is moot. See 38
U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §
3.159 (2009); Mayfield v. Nicholson, 19 Vet. App. 103,
(2005), rev'd on other grounds, Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006). Therefore, there is no need to
engage in any analysis with respect to whether the
requirements of the VCAA have been satisfied concerning the
question of service connection for tinnitus.
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131. For the showing
of chronic disease in service there is required a combination
of manifestations sufficient to identify the disease entity,
and sufficient observation to establish chronicity at the
time. 38 C.F.R. § 3.303(b). If chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim. Id. Service
connection may be granted for any disease diagnosed after
discharge, when all of the evidence establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
The evidence of record reflects that the Veteran underwent
psychiatric and general VA examinations in February 2003. As
to his psychiatric conditions, the VA examiner indicated the
Veteran's experiences while serving in the U.S. Air Force and
stationed in Guam included a stressful reaction to hearing
the noise of jet bombers during his tour. The examiner also
notes a claimed incident that occurred after the Veteran's
tour in Guam, in which he lost control of his emotions.
Specifically, the examiner notes the Veteran's claims as
follows:
He had orders for an assignment to Texas and had
plans to visit his family en route to his new
assignment. Upon opening the envelope containing
the orders and reading them for the first time he
realized that he was to report immediately to his
new station with no time for visiting family. He
felt a surge of anxiety that included sweating and
trembling and a surge of anger that prompted him
to impulsively approach his wing commander, fling
the orders at him and refuse to comply. The wing
commander began initiating court martial
procedures, which never materialized after the
Colonel intervened and somehow reduced the
severity of disciplinary action to an article-15.
Ultimately, the examiner diagnosed the Veteran with alcohol
dependence, generalized anxiety disorder, depressive disorder
and borderline personality traits. In regard to etiology,
the examiner originally opined as follows:
Despite the lack of documentation of the earliest
manifestation of his mood instability while on
active duty, in my opinion, his reporting of
events while on active duty warrants the benefit
of the doubt in favor of the veteran as to the
origin of his psychiatric disorders.
Thereafter, however, the examiner amended his opinion in a
May 2003 statement opining as follows:
Upon review of my opinion in favor of the veteran
based on his reporting of the earliest
manifestation of mood instability precipitated by
events while stationed in Guam, I have concluded
that with no evidenced based empirical support in
his C-file or service medical records of a mood
instability or his reported stressors while
stationed in Guam, I was not in a position to
arrive at that conclusion. The most appropriate
determination for this C&P examination is that
there is a lack of substantive evidence to
conclude that the patient's mood instability first
manifested while he was on active duty and that
the mood instability was precipitated by his
experience on Guam.
In short, it appears the examiner only believed that the
Veteran's psychiatric conditions were first manifested during
active duty insofar as his experiences in Guam can be
confirmed by substantive evidence. At that time, the
examiner was correct in stating that the Veteran's claims
file contained no such objective evidence to verify or
corroborate his historical account. Specifically, neither
the Veteran's DD-214 nor his service medical records were
indicative of foreign service, being stationed in proximity
to bomber aircraft, or even the disciplinary action described
by the Veteran.
Accordingly, the Board concludes the February 2003
examination provides competent medical diagnoses of
generalized anxiety disorder and depressive disorder, not
otherwise specified, linked to military service insofar as
the detailed events of Guam can be verified. The crucial
inquiry, then, is whether the alleged incidents can be
verified.
After the May 2003 amended opinion and the May 2007 Board
remand, the Veteran's personnel records were obtained, which
verified that he served at Andersen Air Force Base (AFB) in
Guam from September 1972 to February 1973 during Operation
Bullet Shot. The personnel records further detail the
disciplinary incident described by him during his February
2003 VA examination. The records confirm that after his
return from Guam, a disciplinary incident occurred wherein he
refused to follow orders. The details described in the
personnel records are consistent with the Veteran's factual
account of his relevant history during the February 2003
examination.
The Veteran has also submitted internet research regarding
Operation Bullet Shot that is consistent with his statements
as well. The Veteran's personnel records reflect that he was
stationed at Andersen AFB in Guam in support of this
operation. The operation itself was one of the last B-52
bomber strikes conducted against enemy targets in North
Vietnam during the closing years of the Vietnam War. Given
the nature of the Veteran's assignment, it is extremely
likely and probable that he was exposed to noise from bomber
aircraft while stationed there. Andersen AFB is, as a matter
of historical fact, an American airbase in the Pacific that
has been in continuous operation since World War II and is
where American jet bombers have been based since the 1950s to
the present day. What also can be confirmed are the dates,
locations, and purpose of his tour in Guam. Therefore, as a
factual matter, the Board concedes that the Veteran has been
exposed to noise from jet bombers while he was stationed in
Guam during active duty.
More recent VA medical records of the Veteran's psychiatric
treatment up to March 2007 were obtained and associated with
his claims file. These records show current diagnoses of
chronic psychiatric impairment, including generalized anxiety
disorder and depression (not otherwise specified), as well as
personality disorder, alcohol and nicotine dependence, and an
organic affective disorder. The 2003 VA opinions came to
different conclusions as to whether there was a service
relationship. As noted, the VA examiner initially opined
that the Veteran's mood problems that the Veteran described
as having in service were the earliest manifestations of his
current Axis I diagnoses of generalized anxiety disorder and
depression (not otherwise specified) to these in-service
events. However, the examiner later recanted his opinion
because of the lack "empirical support" of the claimed
stressors in service. The objective documentary evidence
factually confirms the Veteran's military service in Guam,
his in-service exposure to jet bomber noise, and the in-
service disciplinary action taken against him for having lost
emotional control and engaging in an act of insubordination.
Put another way, the newly obtained service personnel records
now provide the "empirical support" that the May 2003
addendum felt was lacking in the record; and, thus, the
underlying basis of the negative opinion has been cured.
There is now hard evidence to support the conclusions made in
the original February 2003 examination report.
Therefore, resolving any remaining doubt in the Veteran's
favor, the Board will allow the claim. See 38 U.S.C.A. §
5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App.
49 (1990). Service connection for generalized anxiety
disorder and depression (not otherwise specified) is thus
granted, subject to the applicable laws and regulations that
govern awards of VA compensation. See 38 C.F.R. § 3.400
(2009).
ORDER
Service connection for generalized anxiety disorder and
depression (not otherwise specified) is granted.
REMAND
With respect to the remaining issue on appeal (i.e.,
entitlement to VA compensation for small vessel ischemic
disease) documents and correspondence associated with the
Veteran's claims file indicate that pursuant to the Board's
remand of May 2007, he was scheduled for a VA medical
examination on July 10, 2009. Notice of the scheduled
examination was provided to him via a letter dated June 22,
2009, that was sent to his correct mailing address; the
Veteran, however, failed to appear for the July 10, 2009
examination.
Thereafter, in a letter dated in August 2009, the Veteran
explained that he did not intentionally ignore VA's letter
instructing him to report for the examination but was away
from his residence in the months of June - July 2009 visiting
his sisters in Omaha, Nebraska, and was therefore unable to
receive timely notice of the scheduled examination. He
expressed his desire to appear for an examination to support
his claim and, in essence, requested to be rescheduled for
the medical examination that he missed. In the interim
period since the May 2007 Board remand, the evidence of
record indicates that certain events in service that may have
some etiological significance regarding the disability at
issue have been established to have, in fact, occurred:
specifically, that the Veteran was exposed to mercury in
service. In view of this factual determination and the
plausibility of the Veteran's stated excuse as to why he was
unable to show for the scheduled July 2009 VA examination, it
is the judgment of the Board that the Veteran should be given
one more opportunity to report for a medical examination to
address the question of the relationship between his small
vessel ischemic disease and his period of military service.
He should clearly understand, however, that he is legally
obligated to report for examination. 38 C.F.R. §§ 3.158,
3.326, 3.655 (2009); Gobber v. Derwinski, 2 Vet. App. 470,
472 (1992); Olson v. Principi, 3 Vet. App. 480 (1992).
The Veteran alleges that his current small vessel ischemic
disease, which is a disease of that part of the vascular
system that supplies blood to the brain, is the result of in-
service exposure to toxic mercury or, in the alternative,
exposure to pesticides while stationed in Guam. He also
alleged that his brain disease may also be due to medications
(including Prozac) that he was prescribed to treat his
service-connected psychiatric conditions.
Post-service medical records indicate the Veteran suffered a
head injury in November 1994. It was around this time he was
first diagnosed with small vessel ischemic disease. It is
not clear from the medical records whether the proximity in
time between the injury and the diagnosis connotes etiology
or merely the means in which the Veteran's disease was first
discovered.
The Veteran was afforded a VA examination in February 2003
wherein he was diagnosed with small vessel ischemic disease.
No opinion regarding etiology, however, was given.
As explained more thoroughly above, the Veteran's service in
Guam is confirmed in the record. His service medical records
are silent as to any head injury or treatment, diagnosis or
complaints of any brain disease. However, no attempts were
made by the RO to verify the Veteran's alleged exposure to
pesticides. Although subsequent to the Board's May 2007
remand, the RO evidently attempted to verify the Veteran's
exposure to mercury in service and, having found none,
adjudicated and denied his claim including on this basis, the
Board finds that notwithstanding the RO's determination,
there is sufficient evidence of record to factually concede
that the Veteran was exposed to mercury during active duty.
Specifically, his personnel records show that he served as a
dental assistant for almost his entire period of active duty,
during which he was involved in mixing dental filling
material and assisting a dentist in all aspects of dental
treatment, including the application of tooth fillings. It
is a well-established fact of modern dentistry that the metal
mercury in its liquid form is a primary ingredient in the
amalgam used to construct dental fillings; mercury has been
used in dental filling for at least the last 100 years. It
was commonly in use at the time of the Veteran's service and
continues to be in common use to the present day. Therefore,
a VA examination with nexus opinion should be obtained that
addresses this specific contention of the Veteran.
Additionally, the RO should contact the Veteran in order to
obtain more detailed information about his whereabouts and
the circumstances of his alleged exposure to pesticides.
Thereafter, the RO should make reasonable efforts to verify
exposure. To the extent exposure is confirmed, the new VA
examination should ascertain the likely etiology of the
Veteran's small vessel ischemic disease with respect to his
contention that his exposure to pesticides in service led to
this disease. See Duenas v. Principi, 18 Vet. App. 512
(2004) (VA's duty to assist the Veteran includes obtaining a
thorough and contemporaneous medical examination in order to
determine the nature and etiology of the Veteran's
disability).
To the extent that the Veteran contends that his small vessel
ischemic disease may also be due to medications, to include
Prozac, that were prescribed for his psychiatric diagnoses,
as service connection has now been granted for his
psychiatric disabilities, the new VA examination should also
ascertain the likely etiology of the Veteran's small vessel
ischemic disease with respect to this contention. Duenas,
supra.
As previously stated, the VA medical treatment records
presently associated with the claims file are not more recent
than March 2007; any updated medical records available should
therefore be obtained.
Accordingly, the case is REMANDED for the following action:
1. Ask the Veteran to identify specific
circumstances, dates and locations of
alleged incidents of pesticide exposure
during his military service.
2. The RO should then make any attempts
necessary to verify exposure to pesticides
in service.
3. Obtain the Veteran's medical records
for all VA treatment from March 2007 to
the present. All efforts to obtain VA
records should be fully documented, and
the VA facility must provide a negative
response if records are not available.
4. After the above evidence is obtained,
to the extent available, schedule the
Veteran for an appropriate VA examination
for his claimed small vessel ischemic
disease. The examiner should provide an
opinion as to whether it is at least as
likely as not that any current brain
condition is related to his in-service
mercury exposure, any verified in-service
pesticide exposure, or any other incident
of service versus any post-service
incident, to include the November 1994
head injury and the use of medications
prescribed to treat his psychiatric
diagnoses. Pertinent documents in the
claims folder must be reviewed by the
examiner and the examiner should provide a
complete rationale for any opinion given
without resorting to speculation,
reconciling any conflicting medical
opinions rendered.
It would be helpful if the examiner would
use the following language, as may be
appropriate: "more likely than not"
(meaning likelihood greater than 50%), "at
least as likely as not" (meaning
likelihood of at least 50%), or "less
likely than not" or "unlikely" (meaning
that there is a less than 50% likelihood).
The term "at least as likely as not" does
not mean "within the realm of medical
possibility." Rather, it means that the
weight of medical evidence both for and
against a conclusion is so evenly divided
that it is as medically sound to find in
favor of that conclusion as it is to find
against it.
5. The RO should clearly state in the
examination notification letter sent to
the Veteran that he is legally obligated
to report for this examination, pursuant
to 38 C.F.R. § 3.655 (2009)
6. The RO should then readjudicate the
Veteran's claim for service connection for
small vessel ischemic disease. If the
claim remains denied, a supplemental
statement of the case should be furnished
to the Veteran and his representative.
After being provided with an opportunity
to respond, the case should be returned to
the Board if in good order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs